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One of the glaring problems that concerns Africa is the
phenomenon of state failure.

State failure occurs when the rule of law collapses and government
loses legitimacy to make decisions and have its citizens obey those decisions.

As someone who participates in discussions about such
issues, including writing academic papers on the subjects, I am worried that
this phenomenon of state failure is constantly coming to mind when one
discusses strengths of democracy in South Africa. In most cases, citizens tend
to deny the reality of state failure until such point that it is obvious that
it has happened and very little can be done to remedy the situation.

African countries such as Nigeria, Kenya, and also Senegal
have experienced state failure. State failure does not take place abruptly, it
creeps in slowly to a point where the entire state machinery is covered with
this problem, just like waking up to a fog. South Africa is increasingly
gathering characteristics of state failure and denial does not help us.

Last week we saw the courts delivering two unrelated
decisions that raise concerns about the conduct of government. One decision
involves the appointment of Hawks boss Berning Ntlemeza; that his appointment
is illegal, null and void.

Another decisions involves the controversial Sassa where the
court yielded to government‘s relentless efforts to continue with a contract
that is illegal. In both cases, government has not only perpetuated illegality,
but it is also set on defending its conduct and seeks to continue with such
illegality.

Of course we can count on the courts to defend the rule of
law. However, the courts are almost reaching that point of fatigue. When the
highest court in the land is given a false choice to either stop an illegal
contract or allow it to continue because its immediate termination would harm
the poor and vulnerable, then we have a crisis. This shows that our judiciary
is reaching that point of fatigue.

Those who argue that all this instances show the strengths
of our democracy should be mindful of the fact that the courts cannot hold on
their own. Of all the three arms of government (i.e. the judiciary, the
executive, and Parliament), it is only the judiciary that seems to be doing the
right thing.

Even worse is the reality that Parliament and the executive
are ganging up in perpetuating the collapse of the rule of law. This means that
the judiciary is pitted against two arms of government. The reality is that the
judiciary will not hold that long.

Adding to the growing concerns is when the executive fails
to protect the judiciary, and allows for physical intimidation of the judiciary
as we have seen with the recent break in at the office of the chief justice
which has seen the theft of computers.

This took place less than 72 hours after the courts
delivered two separate judgements in which the executive’s conducts were
questioned.

You can think I’m exaggerating to talk about the gradual
setting in on state failure, but take a trip to Nigeria and they will tell you
how they moved from hope to complete cynicism regarding their democracy.

Nations usually deny that they are confronted with the
reality of state failure because every nation thinks it is exceptional and
things like state failure do not apply to them, until they say it was inevitable.

When the executive is hell bent of defending illegality, we risk
the situation where some important responsibilities that should be exercised by
government end up being place under control of the courts and other
institutions because government is failing to discharge its responsibility.

The reality is that Sassa is being placed under a caretaker
arrangement where the minister now has to report to the court periodically on
what she’s up to, just like the accused on bail. This creates unnecessary
tensions as the court is forced to babysit government.

It is the functioning of democracy that the courts have to
rule on the conducts of government when asked to do so as our democracy is
brought to test. Some ways of testing democracy however, should be avoided and
be seen as a last resort, instead of becoming the order of things.

- Ralph Mathekga is an independent political analyst and author of the book When Zuma Goes. He writes a weekly column for News24.

Disclaimer: News24 encourages freedom of speech and the expression of diverse views. The views of columnists published on News24 are therefore their own and do not necessarily represent the views of News24.

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